Johnson v. Bennett

PETITIONER:Johnson
RESPONDENT:Bennett
LOCATION:Stanley’s Home

DOCKET NO.: 32
DECIDED BY: Warren Court (1967-1969)
LOWER COURT: United States Court of Appeals for the Eighth Circuit

CITATION: 393 US 253 (1968)
ARGUED: Nov 13, 1968 / Nov 14, 1968
DECIDED: Dec 16, 1968

Facts of the case

Question

  • Oral Argument – November 14, 1968
  • Audio Transcription for Oral Argument – November 14, 1968 in Johnson v. Bennett

    Audio Transcription for Oral Argument – November 13, 1968 in Johnson v. Bennett

    Earl Warren:

    Number 32, Gale H. Johnson, petitioner versus John E. Bennett, warden.

    Mr. Carlson, you may proceed with your argument.

    Ronald L. Carlson:

    Thank you Your Honor.

    May it please the Court, I am Ronald Carlson from Iowa City, Iowa.

    I’m here today Your Honors representing Gale Johnson who is a prisoner at Iowa State Penitentiary in Fort Madison, Iowa.

    Mr. Johnson was originally charged in this case with the crime of murder.

    The jury, Your Honors, was presented with four alternative verdict forms: murder in the first degree with death penalty, murder in the first degree with life imprisonment, murder in the second degree, or not guilty.

    The jury rejected the first two alternatives that is the first-degree murder alternatives and found Mr. Johnson guilty of murder in the second degree.

    Byron R. White:

    Mr. Carlson?

    Ronald L. Carlson:

    Yes, Your Honor.

    Byron R. White:

    This was 35 years ago?

    Ronald L. Carlson:

    Yes, 34 years ago Your Honor.

    Byron R. White:

    He got life sentence?

    Ronald L. Carlson:

    Yes.

    Byron R. White:

    I gather life sentence like (Inaudible).

    Ronald L. Carlson:

    Well, —

    Byron R. White:

    Even the defendant (Inaudible) may advise for 15 years.

    Ronald L. Carlson:

    Yes.

    Now, we have a rule there I believe Your Honor that provides that the life sentence is non-parolable and has to be commutable to a term of years.

    So, at the present time I believe he is being considered for parole right now but there’s nothing certain about it and I believe he would have to undergo the commutation first.

    Byron R. White:

    And I gather quite that they’ll say in Iowa, life is almost (Inaudible).

    Ronald L. Carlson:

    Yes, that’s right.

    Now, he claims certain very distinct errors occurred in his trial Your Honors.

    Byron R. White:

    (Inaudible)

    Ronald L. Carlson:

    Sure.

    Byron R. White:

    Had he raised these questions in other procedures he elevated?

    Ronald L. Carlson:

    Yes, he has.

    He has been denied evidentiary hearings on every occasion, —

    Byron R. White:

    When did —

    Ronald L. Carlson:

    — say the one below.

    Ronald L. Carlson:

    1949, Your Honor.

    Byron R. White:

    That’s I suppose — that was 15 years I believe.

    Ronald L. Carlson:

    Yes.

    But well the witness who was suppressed was still alive which is very important.

    He in fact filed three habeas corpus, I believe that year.

    Then he filed again in federal habeas corpus in 1960.

    Again, the witness was still alive and he was still trying.

    He took an affidavit from the witness in the meantime.

    He filed for habeas corpus again in the Iowa Supreme Court as an original petition in 1966.

    This again was denied without hearing.

    He then went back to federal district court to file for habeas corpus again.

    Now, he got his evidentiary hearing.

    Now, he was able to put off record the significant facts about the suppression that we’re talking about here today.

    Byron R. White:

    Thank you.

    Ronald L. Carlson:

    Thank you, Your Honor.

    Earl Warren:

    Was he an indigent at the time he was convicted?

    Do you know?

    Ronald L. Carlson:

    Yes, at least Your Honor he was an indigent as it pertained to his securing of witnesses.

    Now, by reason of his poverty he was entitled to use a statute under which he could subpoena witnesses if he could show the trial court that the witness was material and necessary to the defense.

    He made application and the court granted the subpoena under the statute so apparently that was the case.

    Now, the statute admittedly that he subpoenaed his witness under required him to make a preliminary showing of the necessity of this witness.

    So, he went to trial court back in 1934.

    He applied for this witness and the subpoena was issued.

    It was sent from the county of trial approximately 165 miles away to the county of the residence of the witness.

    Now, this witness’s name was Mr. Orsucci.

    Mr. Orsucci lived in our City of Des Moines and the Sheriff in Polk County which is Des Moines, Iowa received this subpoena and did not serve it.

    In fact he made a subpoena return indicating the witness could not be served and that the witness, Mr. Orsucci was confined in a mental institution.

    Now, Your Honors, I’m very sorry to say this was not true.

    In fact this witness, Mr. Orsucci, was at the very time of the subpoena return under lock and key of the very sheriff whose responsibility it was to serve the subpoena.

    Now, this fact that I’m now stating is beyond dispute in this proceeding.

    Ronald L. Carlson:

    So we have a purely legal question I think involved.

    The records of the Polk County Jail were subpoenaed into the habeas corpus hearing below and I reflected them in our appendix here.

    They demonstrate that this witness that was subpoenaed by the defendant was in fact during the course of the trial in the Polk County Jail at the relevant times.

    Abe Fortas:

    Is it clear whether this was a deliberate falsehood or a mistake on the part of the sheriff?

    Ronald L. Carlson:

    Your Honor, the facts I think would exclude the mistake analysis.

    If Your Honor’s question goes to whether we have direct admissions of the sheriff or prosecuting officer that they were locking the man up to keep him away from the trial we don’t have such admissions.

    Abe Fortas:

    And you don’t have any findings, do you?

    Ronald L. Carlson:

    We do have the finding of the Court of Appeals below for instance which says the evidence on the point establishes a prima facie case that the sheriff made a false return.

    That also, Your Honor, is established by our trial court’s finding below in which —

    Byron R. White:

    (Inaudible)

    Ronald L. Carlson:

    Well, Your Honor, the trial court made an independent investigation at the mental institution.

    He concluded I believe his order appears on page 34 of our appendix that the records there show that this witness was never entered there as a patient and he could find no evidence that he transfer of the witness to the mental institution was contemplated.

    So while the sheriff put on the return, your witness is in the mental institution, is virtually unexplainable.

    Byron R. White:

    I take a picture, unavailable, would he?

    Ronald L. Carlson:

    Yes, he has desist, Your Honor.

    Byron R. White:

    It’s not your submission though that the — said this county was 160 miles when the file came?

    Ronald L. Carlson:

    That’s exactly right Your Honor.

    Byron R. White:

    Does it also suggest that the prosecutor, I take it, is an official of the prior case?

    Ronald L. Carlson:

    Right.

    Byron R. White:

    Does anyone — local sheriff of that county knew anything of this assuming now what are these people?

    Ronald L. Carlson:

    There is no evidence in the record Your Honor positing clear proof that the trial prosecutor in our county of trial was aware of what was going on in Des Moines.

    Byron R. White:

    So to that extent, it’s a question issue we have.

    This would rather be in a larger with possible amount of this situation which we have found that no trial was required —

    Ronald L. Carlson:

    Yes, although clearly was in the spirit Your Honor and I think the due process clause protects against governmental action.

    And cases have said that you can’t carve out the Government into small units.

    In other words, if sheriff’s officers in another county brutalized the confession from a defendant, could it be said that the prosecutor at a different county could take the confession on a silver platter and use it.

    Byron R. White:

    So far the case is I think am I correct?

    Ronald L. Carlson:

    Yes.

    Byron R. White:

    In this area, knowing some question of evidence have involved fact situation that were under the prosecutor itself or someone related officially to him like a local police officer or something who was responsible for his right?

    Ronald L. Carlson:

    This is clear.

    Byron R. White:

    So again, to that extent your submission that was require a logical principle so that the —

    Ronald L. Carlson:

    This is exactly right and I consider it very consistent one, Your Honor, nothing inconsistent.

    I will in connection with the false notes that were introduced into the trial to speak just a little bit about the prosecutor’s participation but it does not play a role in this particular aspect that we can point to in the record.

    Byron R. White:

    I was thinking, if you prevail, this man will end up to be tried.

    Ronald L. Carlson:

    Well, I don’t think it’s that clear I think there can be an attempt to retrial we’ll just have to cross that bridge when we come to it.

    I think —

    Byron R. White:

    Well, I thought you said if somebody believes.

    Ronald L. Carlson:

    Many witnesses are unavailable.

    I think it would be very difficult Your Honor.

    Now, the suppression point that we have mentioned here Your Honors, the respondent treats at page 7 of the respondent’s briefs saying the fact that a requested defense witness was held in jail during the course of petitioner’s trial is undisputed.

    So as I say, there apparently is no fact issue on that key question.

    Now, the respondent would deny the due process implications which we alleged exist in this particular situation by saying basically that the case is an old one.

    The respondent asserts that the petitioner in the years ensuing since his conviction has more or less sat on his hands.

    In respondent’s brief, resisting certiorari, the respondent stated the unusual age of this case combined with the death of the witness and the lack of concern by the petitioner while the witness was alive served a highlight his lack of availability of relief here.

    It’s her point that he has saw it in every way he knows how and every way a man in the penitentiary can do to keep his case alive, to bring it on for hearing.

    And it seems to us that it is especially unseemly for the state to take this position when they have resisted his attempts to get this case in the court.

    To get these witnesses evidence before the judge of record.

    Now, to say well he sat on his hands.

    I think the record bears out that he has filed one habeas corpus after another.

    In addition to that, he has not left us of completely dry as it pertains to exactly what this witness experience was.

    He did obtain an affidavit from the man which appears at page 33 of our appendix wherein Mr. Orsucci said, “On the relevant date, I was confined in Polk County jail.

    I saw in the Des Moines Register a news item saying I was being sought for witness.”

    He tells that he has to note to the turn key wanted to be let out, and pass the note for the judge.

    His requests were denied and he was never served with subpoena.

    Now, the idea of prosecutorial knowledge —

    Byron R. White:

    Incidentally, with direct trying the (Inaudible)

    Ronald L. Carlson:

    No, there was not Your Honor.

    His particular position in the trial of the case is not much referred to and we have our ideas of how it would have been used and I think he certainly was a key figure in this whole thing.

    He’d been arrested for this murder and clearly I think the defense wanted him to point out that the state’s witnesses down there in Burlington, the place of the trial had identified him as being one of the man implicated and he would have very clearly undercut their credibility had he been produced, I think.

    Hugo L. Black:

    Where was he tried?

    Ronald L. Carlson:

    Pardon me, Your Honor?

    Hugo L. Black:

    Where was he tried?

    Ronald L. Carlson:

    At Burlington, Iowa Your Honor is where my petitioner was tried.

    Hugo L. Black:

    And what’s that Burlington have to do with it?

    Ronald L. Carlson:

    Well, there were two witnesses in Burlington at the scene who had identified my petitioner and one of them apparently made an identification of this Mr. Orsucci as well which prove to be erroneous.

    Now —

    Earl Warren:

    Do I understand from you that before the judge issued the subpoena, that it was necessary for him to be the opinion that this witness was necessary to the defense?

    Ronald L. Carlson:

    That is precisely right Your Honor, that’s exactly what the law provided.

    Now, prosecutorial knowledge place a great role or lack there of in connection with a second development in this trial.

    There was introduced we contend false documents, false notes against the petitioner.

    The state penitentiary at Fort Madison and I think this is undisputed was a great focus for the prosecutor to be investigating before the trial.

    The evidence on both sides — oh!

    Excuse me.

    Earl Warren:

    We’ll recess now Mr. Carlson.